Owners Strata Plan 61172 v Stratabuild Ltd [2011] NSWSC 1000

Owners Strata Plan 61172 v Stratabuild Ltd [2011] NSWSC 1000

The adjudicator misconstrued the distinction between 'reasons' and 'submissions', leading him erroneously to exclude relevant reports and proposals tendered in support of reasons indicated in the payment schedule. This failure to consider material submissions and evidence amounted to a jurisdictional error and...

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Parties
Plaintiff: The Owners - Strata Plan No 61172; First Defendant: Strata Build Pty Ltd ABN 23 120 624 679; Second Defendant: Neil Whittle; Third Defendant: Adjudicate Today Pty Ltd ABN 39 109 605 021
Jurisdiction
Australia
Judgment Date
25 August 2011
Procedural Posture
Judicial Review/administrative Law Application / Principal Judgment/first Instance
Outcome
Adjudication determination declared void due to jurisdictional error and procedural unfairness.
Legal Topics
Judicial Review, Jurisdictional Error, Natural Justice, Building and Construction Industry Security of Payment Act 1999, Procedural Fairness in Adjudication
Administrative Law Building and Construction Law Procedural Fairness Judicial Review Jurisdictional Error Natural Justice Building and Construction Industry Security of Payment Act 1999 Procedural Fairness in Adjudication

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Parties

The Owners - Strata Plan No 61172

Plaintiff

Strata Build Pty Ltd ABN 23 120 624 679

First Defendant

Neil Whittle

Second Defendant

Adjudicate Today Pty Ltd ABN 39 109 605 021

Third Defendant

Procedural Posture

Judicial Review/administrative Law Application / Principal Judgment/first Instance

Legal Issues

  1. 1 Whether the adjudicator made a jurisdictional error in failing to consider certain evidence and submissions in the adjudication response
  2. 2 Whether the exclusion of supporting reports and proposals from consideration breached procedural fairness or natural justice
  3. 3 Proper construction of 'reasons' and 'submissions' under ss 14(3), 20(2B), and 22(2)(d) of the Building and Construction Industry Security of Payment Act 1999

Ratio Decidendi

The adjudicator misconstrued the distinction between 'reasons' and 'submissions', leading him erroneously to exclude relevant reports and proposals tendered in support of reasons indicated in the payment schedule. This failure to consider material submissions and evidence amounted to a jurisdictional error and denial of procedural fairness, resulting in the adjudication determination being declared void.

Court Disposition

Adjudication determination declared void due to jurisdictional error and procedural unfairness.

Orders

  • Declaration that Adjudication Application No. 2011ADJT142 dated 11 April 2011 is void.
  • Parties to bring in short minutes in accordance with the reasons; arguments on costs to be heard subsequently.